Council to hold meeting Friday on establishing policy for elevated pools and structures

January 8, 2014

Council will hold a special meeting this Friday at 10 a.m. to discuss and vote on what the policy regarding elevated pools and accessory structures should be going forward.

In the printed version of the Beach Observer, it was stated that Council would meet at 10 p.m. that day. We regret the error. The rest of the story is as follows:

An appeal regarding the construction of five accessory elevated swimming pool structures within the property of new single-family homes on Palermo Circle on Fort Myers Beach has been denied.

The Fort Myers Beach Town Council denied the appeal requested by developer Joe Orlandini, represented by attorney Beverly Grady, that would have allowed work done on 221 Palermo, 263 Palermo, 301 Palermo, 455 Palermo and 551 Palermo. The appeal was not approved by a narrow 3-2 count.

Back on Oct. 26, 2013, Council adopted a moratorium resolution to declare "zoning in progress" and to preclude issuing building permits for elevated pools until it adopted regulations for such pools. Questions were raised about the processes, "ambiguous" language in the Town Land Development Code and interpretations of it. Those wishing to appeal Resolution 13-26 would have to come before Council after Town staff allowed approval of permits.

All structures were subject to the moratorium, except for 301 Palermo Circle, which was already built.

"There is one that is already built and was issued a permit prior to the zoning in progress," said Town Community Development Director Walter Fluegel. Due to the legislative action, the other four remain under moratorium.

Town Attorney Derek Rooney, one of three attorneys in attendance from Fowler White Boggs, stated as long as the moratorium goes on, more problems will arise from a liability standpoint.

"You had serious questions as a result of these pool permits being issued and the construction that raised interpretation in your code. The resolution was the quickest way to put a meaning on a notice and effectively take staff review of permits away from staff," he said. "The next step in your process should be a review of the interpretation."

Code interpretation involves regulation language pertaining to the height of such elevated pools and accessory structures, attachment to principal structure and enclosure material and setback from water bodies. Questions have arisen to whether these elevated pools should have to comply with the principal structure setback of 25 feet or if a 5-foot accessory structure setback for such structures apply. Town staff determined that, as long as pool and deck are not attached to principal structure, an elevated pool should be allowed a 5-foot setback from a canal. It was also determined that an enclosure (fence, railing or wall) would be allowed for a minimum safety code requirement.

The permit requests were said to be made due to FEMA-imposed base flood elevation requirements that range from 10 to 13 feet above adjacent grade in that particular neighborhood. Grady claimed that certain properties should not be subject to the resolution in question due to the processes undertaken by Council and Town staff.

"We respectively submit the Resolution 13-26 is null and void and this process today is null and void," she said. "Those applications were filed months prior to Resolution 13-26 and were found to be consistent with the land development code by (Town) staff and an attorney. Your obligation is to hold and respect your code as it exists today. The Town now has lawfully refused to process and complete those permit applications."

This case was the first such appeal brought to Council since the moratorium was imposed. The quasi-judicial process attracted a standing-room-only crowd at Town Hall and more than one hour of public comment during the nearly four hours of deliberation.

Residents, many of them neighbors to the structures in question, raised concerns related to environmental impact, "property view obstruction," diminishing of "property value" and the fact that there is no ambiguity in the code, just misinterpretations of it.

Former Beach Mayor Dan Hughes, who helped develop the Town code, called the issue one of the most important that the current Council has or may face due to it possibly resulting in serious implications.

"If you conclude that (the underlying applications) are not in compliance with the Town's code, then the appeal fails," he said. "In my view, as a person who has been involved in drafting the initial comprehensive plan and the land development code, these structures at issue should not be permitted."

Last month, Council entertained drafting an ordinance to amend the Town code regarding accessory uses, building and structures, but decided to table the first of two hearings for Ordinance 13-10 that would prohibit elevated pools and related issues until code legislation could be adopted for more effective regulation.

Beach Mayor Alan Mandel was among Town officials that called for an interpretation finding and an independent investigation review from an independent law firm. Constangy Brooks & Smith provided an answer last week via a memorandum. It stated "the LDC permits elevated, non-roofed swimming pools and decks to be placed up to but not closer than five feet from a seawalled canal or seawalled natural body of water provided that these non-roofed accessory structures are not enclosed (except by a fence or screened enclosure) and are not structurally part of the principal building."

After on the agenda topic, Council unanimously approved to lift the moratorium to allow the construction of ground level pools that have a 25-foot setback or five feet from a seawall if they are built no higher than 42 inches of natural grade. Builders of the "in-compliance pools" said they were dealing with a "hardship" due to the moratorium and desired relief from it.